SHEILA K. OBERTO, Magistrate Judge.
Petitioner, Philip Johnson, is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
On January 20, 1999, the U.S. District Court for the Middle District of Florida sentenced Petitioner to 300 months' imprisonment after he was convicted of interference with commerce by threat or violence (18 U.S.C. § 1951); kidnapping (18 U.S.C. § 1201); and money laundering (18 U.S.C. § 1956). Petitioner is incarcerated at the Federal Correctional Institution ("FCI"), Mendota, California. His projected release date is January 14, 2020, with good conduct time.
On April 2, 2014, a BOP investigative officer read a letter Petitioner submitted for mailing to Mr. Robert Brewer ("Mr. Brewer"). Mr. Brewer is not in BOP custody. In the letter, Petitioner requested Mr. Brewer instruct his incarcerated son, Jordan Brewer ("Jordan"), to deliver typewriter ribbon to Petitioner. Petitioner was previously incarcerated with Jordan and left typewriter ribbon with Jordan when Petitioner transferred to FCI Mendota. Petitioner suggested that Jordan send the typewriter ribbon with the next inmate to transfer from Jordan's place of incarceration to FCI Mendota. In exchange for the delivery of the typewriter ribbon, Petitioner offered to decrease a debt owed by Jordan to Petitioner.
(Doc. 14-1 at 25) (emphasis in original).
In his Incident Report dated April 2, 2014, Petitioner was charged with circumventing mail monitoring procedures, BOP Code 296. BOP Code 296 prohibits:
28 C.F.R. § 541.3, Table 1, Code 296.
Special Investigative Support ("SIS") Technician S. Rositas described the incident as follows:
(Doc. 14-1 at 19.)
When contacted by Lieutenant A. Smith, who was investigating the incident, Petition stated "I have been down sixteen years and I never heard of this" (circumventing the mail procedures). Id. at 20. After the investigation, the Unit Disciplinary Committee ("UDC")
DHO J. Dern conducted a disciplinary hearing on April 10, 2014. Id. at 22, 24. Petitioner requested the assistance of a staff representative, and Unit Manager S. Scott was appointed. Id. at 22. S. Scott reviewed all of the paperwork related to the incident and found that Petitioner was given advance notice and written notice of the charge, so his Due Process rights were not violated. Id. At the hearing, Petitioner stated: "I'm not saying I did it or didn't do it, the charge is unconstitutionally unspecific. I did attempt to have an inmate from another institution bring me my typewriter ribbons for money, show me specifically where I can't do that." Id.
The DHO considered the following documentary evidence: the incident report and investigation, staff statements, the letter sent by Petitioner, and Petitioner's statements. Id. at 23. Petitioner did not request witnesses or to present evidence at the hearing. Id.
The DHO concluded that Petitioner committed the code violation of which he was accused. The DHO made the following findings and conclusions:
Id. at 23-24.
As punishment for violating Code 296, the DHO sanctioned Petitioner with 3 months' loss of telephone and email privileges, and disallowed 27 days of good conduct time. Id. at 24.
On March 31, 2015, Petitioner filed the petition for writ of habeas corpus in this Court. The parties do not dispute venue, personal service, subject matter jurisdiction, or exhaustion of remedies.
Petitioner argues that he was denied his Due Process rights because Code 296 is unconstitutionally vague, in that it did not warn him that his actions in writing the letter were prohibited. (Doc. 1 at 3.) Respondent contends that Code 296 is clear and placed Petitioner on notice that asking an individual to relay a message to a third party was prohibited. (Doc. 14 at 6.)
"It is a basic principle of due process that a law is void for vagueness if its prohibitions are not clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). A regulation must be "sufficiently clear so as to allow persons of `ordinary intelligence a reasonable opportunity to know what is prohibited.'" Foti v. City of Menlo Park, 146 F.3d 629, 638 (1998) (quoting Grayned, 408 U.S. at 108). Vague regulations are void for several reasons "(1) to avoid punishing people for behavior that they could not have known was illegal; (2) to avoid subjective enforcement of the laws based on `arbitrary and discriminatory enforcement' by government officers; and (3) to avoid any chilling effect on the exercise of First Amendment freedoms." Id. (quoting Grayned, 408 U.S. at 108-09).
With prison regulations, "due process undoubtedly requires certain minimal standards of specificity;" however, "the degree of specificity required of such regulations is not as strict in every instance as that required of ordinary criminal sanctions." Velasquez v. Brown, No. 1:10-cv-01593-AWI-MJS, 2011 WL 2960875, at *5 (E.D. Cal. July 20, 2011) (unpublished) (quoting Meyers v. Aldredge, 492 F.2d 296, 310 (3d Cir. 1974)) (internal quotation marks omitted). In the context of prisons, "the law requires less in the way of notice, and places a greater burden on the individual to make inquiry or ask permission before acting." Id. (quoting Meyers, 492 F.2d at 311) (internal quotation marks omitted). Courts defer to a "prison authorities' interpretation of prison rules `unless fair notice was clearly lacking.'" Id. (quoting Hadden v. Howard, 713 F.2d 1003, 1008 (3d Cir. 1974)).
The BOP regulation pertaining to mail listed examples of violations of activities which circumvent mail monitoring procedures. These actions include:
28 C.F.R. § 541.3, Table 1, Code 296.
This regulation puts a reasonable prisoner on reasonable notice that sending a letter to someone with a direction to have the letter sent to an unauthorized third individual was a violation of BOP regulations. Similarly, a reasonable prisoner could conclude from this regulation that directing an individual to communicate with a third individual falls within the scope of the regulation. Foti, 146 F.3d at 638 (quoting Grayned, 408 U.S. at 108). That the regulation may not describe every potential violation does not render it impermissibly vague. See Velasquez, 2011 WL 2960875, at *5. The examples specified in the regulation allow a reasonable prisoner to infer that other similar conduct could also be a violation of Code 296. Id.
Here, Petitioner had fair notice that his conduct could constitute a rules violation. Code 296 prohibits the use of mail for abuses other than criminal activity. 28 C.F.R. § 543.1, Table 1, Code 296. Petitioner wrote to Mr. Brewer with the intent to have Mr. Brewer relay instructions to his incarcerated son, Jordan, and even urged Mr. Brewer not to contact Jordan by telephone. Jordan is also incarcerated at a different institution and Petitioner was prohibited from communicating with him without approval. See 28 C.F.R. § 540.17. Code 296 clearly prohibits mailing a letter to one individual with the intent of it being sent to a third person. Foti, 146 F.3d at 638 (quoting Grayned, 408 U.S. at 108). Therefore, Petitioner was given fair notice that writing a letter to Mr. Brewer, asking him to give instructions to his son Jordan, could violate Code 296. As such, Code 296 satisfies the due process requirement of fair notice in the prison context, and the Court will deny Petitioner's petition for writ of habeas corpus. Velasquez, 2011 WL 2960875, *5.
A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides:
If a court denies a petitioner's petition, the court may only issue a certificate of appealability "if jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Although the petitioner is not required to prove the merits of his case, he must demonstrate "something more than the absence of frivolity or the existence of mere good faith on his. . . part." Miller-El, 537 U.S. at 338.
In the present case, the Court finds that reasonable jurists would not find the Court's determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. Petitioner has not made the required substantial showing of the denial of a constitutional right. Accordingly, the Court declines to issue a certificate of appealability.
The Court hereby ORDERS that:
IT IS SO ORDERED.
